There’s a lot of debate about what to make of Ron Paul, federalism and Ron Paul-style paleolibertarianism, specifically its overlap with the issue of mass incarceration and the War on Drugs. Conor Friedersdorf argues that this style of libertarianism is a net good because it’ll decrease the power of the federal government. Jon Chait responds.

Let’s take two, big congressional votes over the past two years on the issue of mass incarceration. The first is the Fair Sentencing Act, which President Obama signed into law on August 3rd, 2010. It “reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger certain United States federal criminal penalties from a 100:1 weight ratio to an 18:1 weight ratio and eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine, among other provisions.”

What Ron Paul did not co-sponsor was the House’s National Criminal Justice Commission Act of 2010. This is Democrat Jim Webb’s big project to study and propose reforms of the the federal, state and local criminal justice systems. Here is Webb’s description:

…the National Criminal Justice Commission Act (S. 306), which will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the criminal justice system from top to bottom. I believe that it is time to bring together the best minds in America to analyze the criminal justice system in its entirety, to examine its interlocking parts, to learn what works and what does not, and make recommendations for reform….

Enacting the National Criminal Justice Commission Act will take the long-overdue step of undertaking a comprehensive review of the criminal justice system, producing recommendations for changes in oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice at every step of the criminal justice system.

The National Criminal Justice Commission Act passed the House in a voice vote, so we don’t have Ron Paul’s vote, but I can’t find any positive statements from him.

But, in the second important Congressional vote I want to flag, it died due to Republican resistance in the Senate. 43 Republicans voted against creating this commission – a commission to just study and make recommendations, not actually change laws – meaning it failed even with 57 votes for it. Why were Republicans against it? Federalism and states’ rights:

Two Republican senators, Kay Bailey Hutchison of Texas and Tom Coburn of Oklahoma, spoke against the amendment, saying that allowing a federal commission to examine state and local criminal justice systems would encroach on states’ rights and that the commission’s $5 million budget should be used for other purposes.

Hutchison said studying the federal system is within Congress’ powers but including state and local justice systems “is an overreach of gigantic proportions.”

“We are absolutely ignoring the Constitution if we do this,” Coburn said.

Reihan Salam refered to the GOP block as “an absolute scandal” and Radley Balko found the argument dubious. Senator Rand Paul was among those who voted against the commission.

When researchers run statistics over state-level incarceration rates, they find things like “controlling for social disorganization, religious fundamentalism, political conservatism, and violent crimes, the results show that Republican strength [in state governments]…lead to higher imprisonment rates. Statistical interactions support predictions that these relationships became stronger after greater Republican stress on law and order.” States with a Republican governor and Republican legislatures show a greater increase in incarcerated populations, and that the effect is stronger in the 1990s. Institutions like ALEC were most effective at the state level in changing laws to bias towards longer sentencing. State laws are crucial to understanding the massive run-up in mass incarceration, and that is where much of the battle will be.

There’s a lot to be done at the federal level, but any serious critique of mass incarceration needs to tackle the states, and the federal level will need to play a part in it.